Life After the Voting Rights Act

Supporters of the Voting Rights Act are hoping for the best and preparing for the worst as the days count down to the U.S. Supreme Court’s decision in Shelby County v. Holder, the live challenge to the “preclearance” requirement in Section 5 of the federal statute. If the “best” occurs, at least five of the justices will recognize that the venerable law, while not perfectly tailored, is nonetheless a viably constitutional expression of Congress’s desire to reduce voting discrimination in jurisdictions with long histories (and current iterations) of racist policies and practices. And if the “worst” occurs, and many legal observers are predicting it will, we will see five votes to strike down Section 5 or otherwise nullify its remedial effects.

All of which is why it is important, as the clock ticks toward resolution of Shelby County, to contemplate what the world might look like after the demise of Section 5. It is not a pretty sight. State lawmakers, restrained for the past 48 years from implementing discriminatory voting practices, would be able to do so without first clearing their policies with federal officials. The burden of establishing voting discrimination would shift from state officials to individual voters, who would have to engage in lengthy litigation after discriminatory laws are implemented. There can be no doubt the end of Section 5 would result in the disenfranchisement of minority voters. The only open question is how many would effectively lose their ability to vote.

Those are all general observations. In a report out last week just in time for the Supreme Court’s final crush of decisions, the Brennan Center dutifully offered some specifics and a great many details about the disadvantages voters could experience if state officials were able to implement discriminatory practices in a world without Section 5:

Jurisdictions could try to revise discriminatory changes blocked by Section 5. To give you a sense of the scope of this category, consider that 31 such proposed changes have been blocked by the Justice Department or the federal courts since the Voting Rights Act was last reauthorized just eight years ago. In just the past six months, after the 2012 election, many such challenges have been rejected.

Jurisdictions could put in place broad discriminatory practices they were previously “chilled” from implementing by Section 5’s preclearance requirement. In South Carolina v. Holder, a Section 5 challenge that preceded the 2012 election, U.S. District Judge John D. Bates, an appointee of George W. Bush, highlighted the deterrent effect of the statute — how it prevented state lawmakers from moving forward with the most obviously discriminatory practices, and how these officials narrowed the scope of their proposed voting change to track the requirements of the Section. That deterrent effect will be gone.

Jurisdictions might implement those discriminatory practices they tried but failed to get past the Justice Department under Section 5. The Brennan Center reports that 153 such voting measures have been submitted and then withdrawn in recent years after federal officials questioned the discriminatory nature of these proposed laws. Even if just half of these policies were to be reconsidered and adopted in the absence of Section 5 they would significantly change the voting rights landscape in several Southern states.

Finally, the most obvious impact — jurisdictions might try to adopt restrictive new voting measures they neither contemplated nor dared submit for preclearance under Section 5. For best effect, those lawmakers could do so on the eve of an election, forcing voting rights advocates to scramble and practically daring the federal judiciary to enjoin the measures. We wouldn’t likely go back to the age, as John Lewis recounted, where black voters would have to guess the number of bubbles in a bar of soap. But we wouldn’t be too far off, either. Just last election cycle, in Texas, lawmakers sought to impose what amounted to a poll tax on indigent — or carless — registered voters.

Rick Hasen, the notable voting rights specialist, predicted last week that the Court’s conservatives would neuter Section 5 without killing it outright and the justices would then seek to blunt the public reaction to their decision by inviting Congress to “fix” the Section. It’s hard to see this Congress rushing to the rescue of the Voting Rights Act. Then again, our federal lawmakers did ratify the law’s renewal in 2006 by overwhelming majorities in both houses and it’s hard to argue that Congress today is materially more conservative than it was seven years ago. Here again, I suppose, it’s probably a good idea to hope for the best and prepare for the worst.